Garcia v. County of Bernalillo

839 P.2d 650, 114 N.M. 440
CourtNew Mexico Court of Appeals
DecidedAugust 18, 1992
Docket12204
StatusPublished
Cited by4 cases

This text of 839 P.2d 650 (Garcia v. County of Bernalillo) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garcia v. County of Bernalillo, 839 P.2d 650, 114 N.M. 440 (N.M. Ct. App. 1992).

Opinions

OPINION

FLORES, Judge.

Claimant Richard Garcia (Garcia) appeals the district court’s judgment reversing the County of Bernalillo Personnel Board’s (personnel board) decision reinstating Garcia to his former driving position as a voting machine technician and granting Garcia back pay. On appeal, Garcia raises essentially two issues: (1) that there is a conflict between the collective bargaining agreement (CBA) and the County of Bernalillo Safety Policy (safety policy) and that the terms of the CBA govern; and (2) that the personnel board did not act arbitrarily and capriciously, or abuse its discretion in making its determination regarding his suspension, transfer, or reinstatement. We affirm the district court’s judgment.

FACTS

Garcia was employed by the County of Bernalillo (county), as a voting machine technician, a job classified as a driving position. Garcia received citations, while off duty, for DWI and careless driving in March 1988. Garcia plead nolo contendere to the DWI charge and received a deferred sentence in July 1988. The careless driving citation was dismissed. In October 1988, the county’s safety director received information from the Motor Vehicle Department that Garcia’s driver’s license was revoked until July 20, 1989. On October 19, 1988, the county informed Garcia that he could continue to perform his duties as a voting machine technician as long as he did not operate any county vehicle. The county also informed Garcia that his position would be re-evaluated following the November 1988 election. Subsequently, Garcia was suspended for approximately two days and was transferred to a non-driving position as a custodian.

On January 30, 1989, the county learned that the information regarding Garcia’s license revocation which was received by the county in October 1988 had been erroneous. Garcia then applied for reinstatement to his former driving position as a voting machine technician. However, the county refused to reinstate Garcia. Garcia unsuccessfully initiated a grievance procedure challenging the county’s failure to transfer him to his former driving position. Garcia then appealed from the initial grievance step to the personnel board. The personnel board reinstated Garcia to his former driving position and granted Garcia retroactive pay effective February 1, 1989, the date the personnel board determined Garcia was available to fill his former driving position. The county appealed to the district court. The district court reversed the personnel board’s decision and Garcia appealed to this court.

STANDARD OF REVIEW

Appellate review of an administrative agency decision “is limited to determining whether the agency acted within the scope of its authority, whether the order was supported by substantial evidence, whether the decision was made fraudulently, arbitrarily or capriciously, and whether there was an abuse of discretion or show of bias by the agency.” In re Mountain Bell, 109 N.M. 504, 505, 787 P.2d 423, 424 (1990). The second-tier judicial review is not a means to insure that the district court has done its job in reviewing the decision of the administrative agency, Watson v. Town Council of Bernalillo, 111 N.M. 374, 805 P.2d 641 (Ct.App.1991), but rather, on appeal, the role of this court is to canvass the whole record to determine if there is substantial evidence to support the decision. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.1988).

CONFLICT BETWEEN THE CBA AND SAFETY POLICY

Garcia contends that pursuant to Section 6(F) of the CBA, a suspension for a period of up to 30 days without pay was the only penalty permitted by the CBA for conviction of DWI. Additionally, Garcia argues that the terms of the safety policy had no effect on Garcia as a county employee because Bernalillo County Ordinance 273 (ordinance), which governs employee-management relations between and among the county, its employees, and representative labor organizations, provides that the terms of the ordinance itself as well as the CBA govern relations between the county and the employees.

However, the record reveals that neither party raised this issue before the personnel board. In fact, the CBA was never accepted into evidence and is not properly part of the record. We note that the attorney for the county repeatedly made clear that the county was relying on the safety policy. Yet nowhere did Garcia or his representative make the argument that the safety policy did not apply because of its inconsistency with the CBA. In reviewing an administrative agency decision, “the general rule is that in the absence of a statute providing otherwise, the review is limited to the record made in the administrative proceeding.” Swisher v. Darden, 59 N.M. 511, 515-16, 287 P.2d 73, 76 (1955) (quoting 42 Am.Jur. Public Administrative Law § 224 (1942)). At the administrative hearing, Garcia failed to argue that Section 6(F), or any other section of the CBA, applied to the facts of this case or that the terms of the CBA, rather than the terms of the safety policy, governed this case. Issues not raised in administrative proceedings will not be considered for the first time on appeal. Kaiser Steel Corp. v. Revenue Div., Taxation & Revenue Dep’t, 96 N.M. 117, 628 P.2d 687 (Ct.App.1981). Additionally, new theories or defenses will not be considered when raised for the first time on appeal. Wolfley v. Real Estate Comm’n, 100 N.M. 187, 668 P.2d 303 (1983). Therefore, we do not address this issue.

SUSPENSION, TRANSFER, AND REINSTATEMENT

Garcia argues that the personnel board did not act arbitrarily and capriciously, and did not abuse its discretion in reaching its determination that an employee who has completed a period of suspension following a conviction for DWI, and whose driving record is “clear,” is entitled to return to his driving position. We interpret the reference to Garcia’s record as being “clear” as indicating that Garcia’s license was not revoked by the Motor Vehicle Department.

First, we address Garcia’s suspension and transfer. The safety policy, vehicle operator section, subsection B, provides in pertinent part:

4. Effective with this policy, the following provision will also apply to operators of County vehicles:
The establishment of a bad driving record as determined by the * * * Motor Vehicle Division * * * will result in that person not being allowed to drive a County vehicle, a transfer to another position, suspension, or termination. A bad driving record is defined as a pattern of violations received for such offenses as, but not limited to, careless driving, DWI, reckless driving, speeding, failure to appear in court or failure to pay penalty assessment.
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Garcia v. County of Bernalillo
839 P.2d 650 (New Mexico Court of Appeals, 1992)

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839 P.2d 650, 114 N.M. 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-county-of-bernalillo-nmctapp-1992.